Prinsep and Banerjee, JJ.
1. It has been held by the District Judge in appeal that execution of the decree in this case is barred by limitation.
2. It would seem that execution of this decree was deferred until the 2nd of September 1887, time having been granted to the judgment-debtor up to that date. The decree-holder applied for execution on the 9th September 1887 by sale of the mortgaged property by the Court of the Munsif of Hajipore. The sale was accordingly held; but on appeal to the High Court it was held on the 2nd September 1890 that the Hajipore Court had no jurisdiction. The decree-holder then applied on the 6th September 1890 to the Hajipore Court, which was the Court which passed the original decree, to transfer it for execution to the Court having jurisdiction. Application to execute this decree was next made on the 19th December 1890 to the Court of Muzaffarpur.
3. On these facts the District Judge has held that execution is barred by limitation. He has calculated the period from the 9th September 1887 as most favourable to the decree-holder for a starting point in calculating the period of limitation, and he has next found that the application for execution being made on the 19th December 1890, was made after the period of three years allowed by the law, and was barred. The Munsif whose judgment was under appeal had held that the application made by the decree-holder on the 6th September 1890 to the Court which passed the decree to transfer it for execution to the Court which had jurisdiction to hold the sale was an application within the terms of the law of limitation, and was a step taken in aid of execution of the decree, and that consequently execution of the decree was not barred by limitation. The District Judge on appeal set aside this order on the authority of the case of Nilmony Singh Deo v. Biressur Banerjee I.L.R. 16 Cal. 744.
4. We think that the District Judge has misapplied this case, which relates to an entirely different matter. It was there held that the application to transfer the decree for execution to another Court was not an application to execute the decree. But it was not held in that case, nor was it any part of that case, that it was not an application amounting to some step taken in aid of execution of the decree. Consequently, that case is no authority for the order passed by the District Judge. There are cases on the other hand in which an application for the transfer of a decree for the purpose of execution has been considered to be a step in aid of the execution [see the cases of Latchman Pundeh v. Maddan Mohun Shye I.L.R. 6 Cal. 513, Collins v. Mania Bakhsh I.L.R. 2 All. 284, and Krishnayyar v. Venkayyar I.L.R. 6 Mad. 81]. See also the case of Vellaya v. Jaganatha I.L.R. 7 Mad. 307-Ed. Note.
5. We would also observe that, under any circumstances, the execution of the decree in this case was not barred by limitation, for the case clearly comes within Section 14, para. 3 of the Law of Limitation, and the decree-holder is entitled to a deduction of all the time occupied in executing the decree in the Court having no jurisdiction, it being manifest that such application was made in good faith to the Court, which only in second appeal to this Court was found not to have jurisdiction. The order of the first Court must, therefore, be restored, and the appellant will be entitled to his costs in this Court and also in the Lower Appellate Court.